University of Wyoming College of Law Law Archive of Wyoming Scholarship Other Publications and Activities UW College of Law Faculty Scholarship 11-16-2019 Neocons in Exile Stephen Matthew Feldman University of Wyoming College of Law, [email protected] Follow this and additional works at: https://scholarship.law.uwyo.edu/other Recommended Citation Feldman, Stephen Matthew, "Neocons in Exile" (2019). Other Publications and Activities. 8. https://scholarship.law.uwyo.edu/other/8 This Article is brought to you for free and open access by the UW College of Law Faculty Scholarship at Law Archive of Wyoming Scholarship. It has been accepted for inclusion in Other Publications and Activities by an authorized administrator of Law Archive of Wyoming Scholarship. Abstract: Neocons in Exile For more than twenty-five years, starting in 1980, neoconservatives stood at the intellectual forefront of a conservative coalition that controlled the national government. Drawing inspiration from Leo Strauss’s political philosophy, neocons earned their prominent position by leading an assault on the hegemonic pluralist democratic regime. Pluralist democracy accepts ethical relativism: individuals and interest groups press their own interests and values in the democratic arena. From this array of competing interests and values, the government chooses to pursue those goals that emerge through certain established processes. While attacking pluralist democracy, neocons simultaneously advocated for a return to republican democracy, which had predominated before the 1930s. According to republican democratic theory, virtuous citizens and officials pursue the common good rather than their private interests. Thus, neocons rejected the ethical relativism that supports the pluralist democratic regime and instead championed traditional American virtues that were to direct us toward the common good. But given the election results of 2008, neoconservatives find themselves shorn of power in Congress and the executive branch. Yet, they are not completely impotent: exiled neoconservative justices will continue to control the Supreme Court for years to come. This Article explores how these justices have shaped constitutional adjudication over the previous years, and how they will do so in the future. The Article concludes by examining how progressives might confront the challenge of a largely neoconservative Court. Electronic copy available at: http://ssrn.com/abstract=1505656 Table of Contents: Neocons in Exile I. From Republican to Pluralist Democracy 3 II. On Neoconservatism 8 A. Leo Strauss 8 B. Neoconservative Principles and Policies 11 1. The Inherent Instability of Pluralist (Liberal) Democracy 12 2. The Attack on Relativism 13 3. Resuscitating Republican Democracy 14 4. Neoconservative Domestic Policy 15 C. Neoconservative Constitutional Theory 17 III. The Supreme Court and Neoconservatism 26 A. Supreme Court Decisions 29 1. Congressional Power Cases 30 2. Affirmative Action Cases 36 3. Establishment Clause Cases 41 B. The Supreme Court in the Future: Neocons in Exile 47 IV. Conclusion: What’s a Progressive to Do? 51 Electronic copy available at: http://ssrn.com/abstract=1505656 Neocons in Exile * Stephen M. Feldman ______________________________ * Jerry W. Housel/Carl F. Arnold Distinguished Professor of Law and Adjunct Professor of Political Science, University of Wyoming. I thank Mark Tushnet, Noah Feldman, Richard Delgado, and the fall 2008 participants of the Georgetown/Maryland Discussion Group on Constitutionalism (held at the University of Oregon) for their comments on earlier drafts. Neocons in Exile For more than twenty-five years, starting in 1980, neoconservatives stood at the intellectual forefront of a conservative coalition that controlled the national government.1 Neocons earned this prominent position by leading an assault on the hegemonic pluralist democratic regime, which had taken hold of the nation in the 1930s.2 Pluralist democracy accepts ethical relativism: individuals and interest groups press their own interests and values in the democratic arena. From this array of competing interests and values, the government chooses to pursue those goals that emerge through certain established processes. No preexisting or higher principles limit the interests, values, and goals that can be urged. Process determines legitimacy.3 While neoconservatives began to assail pluralist democracy in the sixties and seventies, they simultaneously advocated for a return to republican democracy, predominant before the 1930s. Republican democratic theory holds that virtuous citizens and officials pursue the common good rather than their private interests.4 Thus, neocons rejected the ethical relativism that supports the pluralist democratic regime and instead championed traditional American values or virtues that were to direct us toward the common good. Yet, the neocons never succeeded in undermining the pluralist democratic framework. To the contrary, the necons themselves operated as just one more interest group competing within the (pluralist) democratic arena, albeit a highly successful one. And now that political winds have shifted, the neoconservatives find themselves shorn of power in Congress and the executive branch. But they will do more than merely survive, bereft of power: neoconservative justices will continue to sit on the Supreme Court for years to come. What consequences, then, will follow from having exiled neocons controlling the Court? Initially, neoconservativism should be distinguished from other political outlooks. Start with a distinction between progressivism (or liberalism) and conservatism. In general, progressives resist governmental efforts to impose moral values but favor governmental intervention in the economic marketplace when necessary to promote equity. Meanwhile, conservatives often favor both governmental and non-governmental promoting of traditional 1Neoconservative texts and helpful sources discussing neoconservatism include the following: Daniel Bell, The Cultural Contradictions of Capitalism (1978; 1st ed. 1976); Allan Bloom, The Closing of the American Mind (1987); Murray Friedman, The Neoconservative Revolution (2005); Francis Fukuyama, America at the Crossroads (2006) [hereinafter Crossroads]; Nathan Glazer, Affirmative Discrimination (1978 ed.; 1st ed. 1975); Jacob Heilbrunn, They Knew They Were Right (2008) [hereinafter Right]; Gertrude Himmelfarb, Poverty and Compassion (1991); Irving Kristol, Neoconservatism: The Autobiography of an Idea (1995); Douglas Murray, Neoconservatism: Why We Need It (2006); George H. Nash, The Conservative Intellectual Movement in America Since 1945 (2008 ed.; 1st ed. 1976); Norman Podhoretz, The Norman Podhoretz Reader (Thomas L. Jeffers ed., 2004); The Future of Conservatism (Charles W. Dunn ed., 2007) [hereinafter Dunn]; The Neocon Reader (Irwin Stelzer ed., 2004) [hereinafter Reader]; Peter Berkowitz, Introduction, in Varieties of Conservatism in America xiii (2004); Francis Fukuyama, The End of History?, 16 The National Interest 3 (Summer 1989) <http://www.wesjones.com/eoh.htm> (accessed February 4, 2009); Jacob Heilbrunn, Neoconservatism, in Varieties of Conservatism in America 105 (Peter Berkowitz ed., 2004) [hereinafter Neoconservatism]. 2See Right, supra note 1, at 164-66 (emphasizing neoconservative efforts to provide the ideas that could hold together the conservative coalition). 3See Stephen M. Feldman, Free Expression and Democracy in America: A History 291-382 (2008) (discussing pluralist democracy). 4See id. at 14-45, 153-208 (discussing republican democracy). Exile -2- moral and religious values, yet prefer an unregulated economic marketplace because it ostensibly rewards individual merit.5 To understand neoconservatism per se, though, it must be distinguished from other forms of conservatism. After World War II, traditionalist conservatives such as Russell Kirk expressed a Burkean reverence for tradition and religion as sources of values.6 They preferred minimal or restrained government, but they brooded that individuals will abuse liberty and become licentious.7 Libertarian conservatives, inspired by Friedrich Hayek’s Road to Serfdom, emphasized the protection of individual liberties, especially economic liberties.8 They worried little about license, and for that reason, they stressed minimal government above all else.9 In contrast, neoconservatives were more willing to accept an assertive government, but one that pursues (conservative) goals embodied in the concept of the common good.10 Neocons believed that, through reason, elite leaders can discern universal truths and the best policies for achieving desired goals consistent with those truths. Since not all individuals can recognize the universal truths, some neocons advocated for the use of tradition and religion to inculcate suitable values.11 To be sure, these are rough definitions, and such generalizations can be misleading. For instance, as is often noted, conservatives tend to protect and celebrate the status quo, while progressives question it. Yet, over recent decades, neoconservatives have led the charge against the pluralist democratic regime—that is, against the status quo. Besides, in the 1980s, President Ronald Reagan managed to fuse the various forms of conservatism under a big tent of conservative politics.12 Undercurrents of disagreement always remained, but the competing conservative movements, in a sense, cross-pollinated.13 Traditionalists, libertarians, and the general public adopted many neoconservative